Gomez v. Commissioner of Correction

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GOMEZ v. COMMISSIONER OF CORRECTION—CONCURRENCE
ROBINSON, C. J., concurring. I join the well reasoned
opinion of the majority concluding that the petitioner,
Jamie Gomez, was entitled to the granting of his petition
for a writ of habeas corpus because his federal due
process rights were violated under Napue v. Illinois,
360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959),
and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763,
31 L. Ed. 2d 104 (1972), when the prosecutor at his
murder trial failed to correct the material, false testi-
mony of two cooperating prosecution witnesses,
despite the fact that the petitioner’s defense attorney
was at least constructively aware that the testimony
was false. I agree with the majority’s conclusion that
the trial prosecutor’s actions in this case constituted
an extraordinary breach of his obligations as a minister
of justice with ethical responsibilities to the public and
the judicial system that transcend seeking convictions
at all costs. See, e.g., State v. Medrano, 308 Conn. 604,
612, 65 A.3d 503 (2013).
Specifically, as the majority notes, the trial prosecu-
tor directly solicited testimony that was false and mis-
leading in nature regarding the witnesses’ cooperation
agreements with the state and did nothing to address
that false testimony, which the witnesses then repeated
during cross examination. The trial prosecutor then
effectively vouched for their credibility during summa-
tions. I emphasize that sanctioning this parade of falsity
has at a minimum the appearance of a dereliction of
the prosecutor’s ethical duty ‘‘to ensure that all evidence
tending to aid in the ascertaining of the truth be laid
before the court, whether it be consistent with the con-
tention of the prosecution that the accused is guilty.’’
(Internal quotation marks omitted.) Massameno v.
Statewide Grievance Committee, 234 Conn. 539, 557,
663 A.2d 317 (1995). I write separately to commend (1)
the Division of Criminal Justice, at an institutional level,
for adopting a comprehensive policy recognizing its
prosecutors’ obligations to ensure the accuracy of coop-
erating witnesses’ testimony and to correct any false-
hoods,1 and (2) the appellate prosecutor for discharging
his obligation as a minister of justice on behalf of the
state and paving the way for habeas relief by candidly
conceding the materiality and falsity of the witnesses’
testimony. Given that concession and the severity of
the Napue/Giglio violation in this case, I join in the
judgment of the majority to direct habeas relief and to
order a new trial for the petitioner.
1
See footnote 10 of the majority opinion.